AKINYEMI & ANOR v. OLADIPUPO & ORS
(2022)LCN/16158(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/I/221/2011
Before Our Lordships:
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
1. MR. OLUJIDE AKINYEMI 2. HRM OBA OLUSANYA ADEGBOYEGA DOSUNMU (OLOWU OF OWU, ABEOKUTA) APPELANT(S)
And
1. OBA SAMUEL ATANDA OLADIPUPO (OLU OF IFO) 2. BALOGUN KUNLE DELANO (BALOGUN OF IFO) 3. ALHAJI (CHIEF) M. A. OGUNJIMI (OTUN OF IFO) 4. ALHAJI (CHIEF) SEMIU OJUBANIRE (OSI OF IFO) 5. CHIEF DENDE ADELANWA (EKERIN OF IFO) 6. ALHAJI (CHIEF) ADISA ADEYEMI (JAGUNMOLU OF IFO) 7. ALHAJI (CHIEF) G. A. ADENIYI (JAGUNNO OF IFO) 8. CHIEF J. O. AKINRELEWO (LUKOTUN OF IFO AND SECRETARY, IFO COUNCIL OF CHIEFS) 9. CHIEF M. O. ODELABU J.P. (BALOYE OF IFO) (For Themselves And On Behalf Of Ifo Council Of Chiefs) 10. ATTORNEY GENERAL OF OGUN STATE 11. STATE COMMISSIONER FOR LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS 12. MR. SIMEON AJANI TOYINBO RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE EXPECTED RESULT OF ADJUDICATION ON ANY MATTER BROUGHT BEFORE THE COURT
On the difference in the type of numbering of the grounds of appeal made in the Amended Notice of Appeal and in the Appellants’ Brief of Argument, I state right away that Courts of today are more interested in doing substantial justice. They are more interested in deciding the merit or otherwise of the causes or issues brought before them, rather than be beholden to technicalities. This point was poignantly made by the Apex Court in IKECHUKWU v NWOYE & ANOR (2013) LPELR-22018(SC), when Ogunbiyi, JSC held at page 10, paras. A, as follows:
“…I seek to emphasize that the expected result of adjudication on any matter is, whether justice has been done to the case or not. The quest is for justice; hence technicality which breeds injustice should not be allowed to rear its ugly head and thus beclouding the very reason why the system is put in place. The principle of technicality has long been done away with under our judicial system of adjudication and given in to substantial justice as the prevailing order of the day. The reason justifying this endorsement is not far-fetched but well founded; the law is made for man and not the reverse. For further and better emphasis, I again seek to state that the primary purpose of putting the law in place is to ensure that justice is to prevail; any subsequent leaning towards technicality for purpose of circumvention would be self-defeating of the very concept which is set out to achieve.”
See also: PDP v INEC & ORS (2012) LPELR-9724(SC), per Rhodes Vivour, JSC at pages 32–33, paras. F–A; THOMAS v FEDERAL JUDICIAL SERVICE COMMISSION (2016) LPELR-48124(SC), per Okoro, JSC at pages 18–19, paras. A–A. PER MOHAMMED, J.C.A.
WHETHER OR NOT GROUNDS OF APPEAL MUST RELATE TO THE FINDINGS OR DECISION APPEALED AGAINST
It is settled law that for grounds of appeal and the particulars thereto to be competent, they must relate to the findings and/or decision appealed against. See: VICTINO FIXED ODDS LTD v OJO & ORS (2010) LPELR-3462(SC), per Fabiyi, JSC at page 9, paras. B–C; ORIANZI v AG RIVERS STATE & ORS (2017) LPELR-41737(SC), per Galinje, JSC at page 12 paras. D–F; and GTB v INNOSON NIGERIA LTD (2017) LPELR-42368(SC), per Eko, JSC at page 12 paras. C–E. Indeed, in OMEGA BANK (NIG) PLC v O.B.C. LTD (2005) LPELR-2636(SC), the Supreme Court, per Tobi, JSC held at pages 32–33, paras. F–A, that:
A ground of appeal should complain of the live issues in the matter which will determine the fortunes of the appeal one way or the other. Where grounds of appeal do not properly relate to or fit into the decision of the Court, they gallivant in the appeal, thus serving no useful purpose. PER MOHAMMED, J.C.A.
THE PURPOSE OF PARTICULARS OF A GROUND OF APPEAL
It must be stated that the purpose of particulars to a ground of appeal is to inform the respondent and the Court of the errors or misdirection complained of. In other words, they are meant to highlight the complaint against the decision or judgment on appeal. Thus, there must be a synergy between a ground of appeal and the particulars of the said ground of appeal and all must relate to the decision or judgment appealed against. See: DIAMOND BANK LTD v PARTNERSHIP INVESTMENT CO. LTD (2009) 18 NWLR (Pt. 1172) 67; OSASONA v AJAYI (2004) 14 NWLR (Pt. 894) 527; MUNGUNO v BLUEWHALES & CO. (2011) 2 NWLR (Pt. 1231) 275; and FEDERAL MEDICAL CENTRE, IDO-EKITI v OLAJIDE (2011) 11 NWLR (Pt.1258) 256. Hence, particulars which speak a different language that is outside the contemplation of the ground of appeal go to no issue. And where all the particulars to a ground of appeal are unrelated to the ground, then the ground of appeal is incompetent and must be struck out. See: ARIBO v CENTRAL BANK OF NIGERIA (2011) 12 NWLR (Pt. 1260) 133; CROSS RIVER BASIN & RURAL DEVELOPMENT AUTHORITY v SULE (2001) 6 NWLR (Pt. 708) 194; OLUFEAGBA v ABDUL-RAHEEM (2009) 18 NWLR (Pt. 1173) 384; and USHIE v EDET & ANOR (2009) LPELR-8146(CA), per Orji-Abadua, JCA at pages 16–18, paras. F-A. PER MOHAMMED, J.C.A.
WHETHER OR NOT ISSUES FOR DETERMINATION MUST ARISE FROM GROUNDS OF APPEAL
It is trite that issues are distilled from grounds of appeal and an issue distilled from an incompetent ground or a combination of competent and incompetent grounds of appeal is also incompetent. See: NJEMANZE v NJEMANZE (2013) LPELR-19885(SC), where Ogunbiyi, JSC held at page 31 paras. D–D, that “the law is well settled that no competent issue can arise from an incompetent ground of appeal. See also: JEV & ANOR v IYORTYOM & ORS (2014) LPELR-23000(SC), per Okoro, JSC at pages 36–37, paras. F–B; and SET SUCCESS ENTERPRISES & CO. LTD. v IBEJU-LEKKI LOCAL GOVERNMENT COUNCIL & ANOR (2021) LPELR-56608(SC), per Peter-Odili, JSC at pages 41–42, paras. B–C. PER MOHAMMED, J.C.A.
ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): By an Originating Summons filed on 11th June, 2009, the 1st-9th Respondents herein (as Claimants), sued the two Appellants herein, the 10th–12th Respondents herein, one Mr. J. S. Olusunde and unknown persons (as 1st–7th Defendants), before the High Court of Ogun State, Ota Division (the trial Court), wherein they sought for determination of the following questions:
1. Whether the 2nd Defendant has the power or whether it is lawful and proper for him to create the office of, appoint or install a monarch for Ifo in Ifo Local Government (i) After the instrument titled “APPROVAL OF APPOINTMENT OF A RECOGNISED CHIEFTAINCY” Notice No. 8 Vol. 30 of February, 2005 had been published (2) Having regard to the existence of a declaration of customary law relating to selection of Ifo Monarch in accordance with Part 2 Section 4 of the Chiefs Law Vol. 1 Revised Laws of Ogun State and (3) having regard to the (Appointment of Prescribed Authority) Notice, 2005 (OGSLN 5 of 2005).
2. Further or alternatively, whether having regard to the provisions of the Chiefs Law Vol. 1 Revised Laws of Ogun State and the provisions of the (Appointment of Prescribed Authority) Notice, 2005 (OGSLN 5 of 2005) the Defendant has the power, or whether it is lawful and proper for him to create and establish a parallel or 2nd Obaship stool in Ifo other than the one recognized by the State.
Upon affirmative answers to the above questions, the Claimants sought for the following reliefs:
A. A declaration that the 2nd Defendant lacks the power and competence to establish the office of a monarch for Ifo however described especially the office of Onifo of Ifoland, therefore the office of Onifo of Ifoland is illegal, null and void and should be set aside.
B. A declaration that it is unlawful and improper for the 2nd Defendant to install, appoint or give approval for the appointment of the 1st Defendant as Onifo of Ifoland.
C. An order setting aside the installation of the 1st Defendant as the Onifo of Ifoland allegedly made sometime in 2006 by the 2nd Defendant.
D. An order setting aside the installation of the 5th, 6th and 7th Defendants respectively as Otun Onifo of Ifoland; Osi Onifo of Ifoland and other chieftaincies purportedly created by the 1st Defendant.
E. AN order of perpetual injunction restraining the 2nd Defendant from further creating, appointing, installing or approving a monarch for Ifo in Ifo Local Government howsoever described.
F. An order of perpetual injunction restraining the 1st Defendant from further parading himself as the Onifo of Ifo land and from further exercising any power or authority of monarch in Ifo.
G. An order of perpetual injunction restraining the 5th, 6th and 7th Defendants from parading themselves respectively as Otun Onifo of Ifo land created by the 1st Defendant.
H. An order of perpetual injunction restraining the 3rd Defendant from giving effect to and/or recognizing the installation of the 1st defendant as the Onifo of Ifo land.
I. An order of mandamus compelling the 4th Defendant to cause to be prosecuted immediately infractions of the provisions of the Chiefs Law especially by the 1st, 2nd 5th and 7th Defendants.
The Defendants did not file any counter affidavit to the Originating Summons. After the matter came up severally for mention, the learned Counsel for the Claimants drew the attention of the trial Court on 25th October, 2010, to a motion on notice filed since 13th October, 2009 by the 1st and 2nd Defendants in which they objected to the competence of the summons, which motion the Court had fixed for hearing since 2nd November, 2009 but which the Defendants were unable to move as a result of their continued absence from Court and failure to serve all the parties. He urged the Court to strike out the motion and allow him to move his summons. Satisfied that the Defendants were on notice as to the hearing date and have refused/failed to attend Court, the trial Court struck out the 1st and 2nd Defendants’ motion and proceeded to hear the Originating Summons. The learned Counsel for the Claimants then moved his Originating Summons and adopted his written address. The trial Court entered its judgment in favour of the Claimants on the 14th of February, 2011. The said judgment is at pages 177–184 of the Record of Appeal.
Dissatisfied with the judgment of the trial Court, the 1st and 2nd Appellants who were the 1st and 2nd Defendants brought this appeal vide an initial Notice of Appeal filed on 19th April, 2011, which is at pages 185 –190 of the Record of Appeal. However, the extant Notice of Appeal is the Amended Notice of Appeal filed on 19th March, 2019 and deemed properly filed on the 21st of January, 2020. The Record of Appeal was transmitted on 6th September, 2011 and deemed properly transmitted on 2nd May, 2012.
In furtherance of the appeal, the parties have filed and exchanged briefs of argument. The Appellant’s brief of argument is the Further Amended Appellant’s Brief of Argument filed on 3rd December, 2021 and settled by A. Ahmed Esq.
The 1st–9th Respondents filed a joint Notice of Preliminary Objection on 4th January, 2022 challenging the jurisdiction of this Court to entertain the appeal, which they supported with a 10 paragraph Affidavit and a Written Address. The 1st–9th Respondents also filed a joint Brief of Argument on the same 4th January, 2022. All the processes were settled by Chief Adewale Olabode. The Appellants filed a Reply Brief on 24th January, 2022.
At the hearing of the appeal on 10th May, 2022, the 1st Appellant was present in Court, but the Appellants’ Counsel, A. Ahmed Esq was absent. The 10th to 12th Respondents who had filed no process in response to the appeal, were absent and unrepresented. The learned Counsel for the Respondent then applied to move his preliminary objection and urged the Court to deem the Appellants’ Brief of Argument as argued. Satisfied that the Appellants’ Counsel was duly served with hearing notice, the Court granted the oral application of the learned Counsel for the 1st–9th Respondents who moved his preliminary objection, after which the Court invoked Order 19 Rule 9(4) of the Court of Appeal Rules, 2021 and deemed the Appellants’ Brief of Argument as argued. The learned Counsel for the 1st–9th Respondents then adopted his Brief of Argument and urged the Court to dismiss the appeal.
THE PRELIMINARY OBJECTION:
In the 1st–9th Respondent’s Notice of Preliminary Objection, they challenged the jurisdiction of this Court to entertain the appeal on the following grounds:
1. The appellant’s grounds of appeal did not emanate from the judgment of the lower Court challenged.
2. The issues formulated for determination in the appellant’s brief argument were not distilled from any cognizable grounds of appeal.
3. The grounds of appeal are based on false narratives as to the existence of disputed facts even though no counter affidavits were failed at all.
4. Grounds of appeal are based on documents not before the Court thereby raising fresh issues without leave of Court sought and obtained. Grounds of appeal/particulars of alleged error are based on Court processes which had been struck by the Court.
5. There is no valid ground of appeal to sustain the appeal.
6. The law is trite that grounds of appeal must emanate from the judgment being challenged.
7. The law is also well settled that issues for determination in an appeal must derive from and be distilled from the grounds of appeal raised in the Notice of appeal.
In the 10 paragraph affidavit supporting the objection, deposed by Ahmed Aboaba, of learned Counsel for the Appellants, he merely repeated the above grounds, that the grounds of appeal do not emanate from the judgment of the trial Court, and that the issues formulated in the Appellants’ Brief of Argument were not distilled from any cognizable grounds of appeal.
In his Written Address, the learned Counsel for the 1st–9th Respondents raised a sole issue of: Whether in the circumstance of this case, the Honourable Court ought not to strike out or dismiss this appeal.
The 1st–2nd Respondents submitted that the Appellant’s grounds of appeal and particulars thereto and the issues distilled therefrom do not flow from the judgment appealed against. Learned Counsel for the 1st–9th Respondents relied on the cases of UCHEGBU v SHELL PETROLEUM DEVELOPMENT CO. NIG. LTD. (2010) 2 NWLR (Pt. 1178) 285; and ADINNU v ADINNU (2013) 45 WRN 53 at 57; and OCTS EDUCATIONAL SERVICES LTD v PADSON INDUSTRIES LTD & ORS (2013) 9 WRN 132 at 152–153. He explained that there was contradictory numbering of the grounds of appeal, where the grounds were numbered 1–6 in the Appellants’ Brief of Argument but referred with alphabets (a)–(g) in the Amended Notice of Appeal. He argued that the grounds of appeal in the Amended Notice of Appeal cannot be matched with those in the Appellants’ Brief of Argument and as such the three issues raised in the Appellants’ Brief cannot be properly situated.
It was also the argument of the 1st–9th Respondents that issues 1 and 3 were distilled by the Appellants from ground 6 which is absurd since two issues cannot be distilled from one ground. He also pointed out that issue 2 has no origin as it is not distilled from any of the grounds of appeal. He stated that this is not surprising because the said issue is based on falsehood that the Appellants filed a defence. He argued that this has rendered all the issues and the grounds of appeal incompetent.
In respect of grounds (a) and (b), learned Counsel submitted that the trial Court merely reiterated a statement of fact made by the Ogun State Government Gazette No. 32 Vol. 30 of 11th of August 2005 which is the instrument brought to Court for interpretation. He further argued that the Appellant totally departed from the case of the Claimant and the judgment and relied on a certain strange Suit No. M/179/97 which was appealed in Appeal No. CA/I/18/2009 pending at the Court of Appeal, Ibadan. He submitted that the Court cases and document referred to in the particulars of error only concerned the stool of Olu of Ifo and had nothing to do with the case before the lower Court, which was about the creation of an illegal title of Onifo of Ifo by the 2nd Appellant who is an Abeokuta based Oba in Abeokuta North Local Government.
The 1st–9th Respondents also submitted that the Appellants deliberately misled themselves and the Court by relying on a non-existent document named “Revised Declaration on Ifo Chieftaincy of 1991” when the document tendered by the Claimants for Court’s consideration is the 1989 Declaration of the Customary Law for Ifo Chieftancy which was referred to in paragraphs 8–12 of the affidavit in support of the Originating Summons as Exhibit A. He referred the Court to page 8 of the Record of Appeal. He pointed out that the Appellants had built their whole appeal on the so-called Revised Declaration of Ifo Chieftaincy and even argued in their brief that the 1st Respondent was appointed based on the Amended or Revised Declaration of 1991. He argued that apart from the incorrectness of those assumptions they are totally irrelevant to the issue before the Court and were therefore never canvassed. He posited that the said grounds (a) and (b) cannot sustain the appeal as they do not emanate from the judgment of the trial Court.
On ground (c), learned Counsel argued that the trial Court merely restated the statement of fact in accordance with the law and there is nothing in the particulars of error to suggest miscarriage of justice. He submitted that the ground is not cognizable. As for grounds (d), (e) and (f), he submitted that they are premised on falsehood as there were no conflicting affidavit because the Appellants did not file any counter affidavit to the Originating Summons and had not defence, as their motion praying the Court to strike out the Summons does not fulfil the requirement of filing a Counter Affidavit if they had a defence. He added that in ground (e), the Appellants relied on documents and cases that were not before the lower Court and as such grounds (d), (e) and (f) are incompetent having been based on false narratives and documents, as well as affidavit that has been struck out. He also submitted that ground (g) which is the omnibus ground that the judgment is against weight of evidence is also incompetent as there was not evidence on the other side.
Counsel contended that the Appellants misconstrued the law to suggest that no declaration can be granted based on originating summons. He referred to MUA’ZU & ORS v BAWA (2018) LPELR-4537(CA). He further submitted that where a ground of appeal attacks an issue not decided in the judgment it is incompetent. He relied on SPLINTERS (NIG) LTD v OASIS FINANCE LTD (2013) 39 WRN 143 at 163–104; OKPONIPERE v STATE (2013) 27 WRN 1 at 15. He pointed out that the case before the lower Court was on interpretation of document, a Government Gazette, the content of which was very clear and unambiguous and there were no conflicting affidavits before the lower Court. Relying on the case of OKOYE v NIGERIAN CONSTRUCTION & FURNITURE CO. LTD (1991) 6 NWLR (Pt. 199) 501 and several others, he submitted that since the Appellants have not appealed against the order of the trial Court striking out their motion dated 13th October, 2009, the order is still subsisting and binding.
Finally, learned Counsel submitted that a Notice of Appeal with no valid ground of appeal is fundamentally defective and robs the Court of jurisdiction to entertain the appeal. Relying on the authority of ADETUNBI v OYEWUMI (2013) 13 WRN 114 at 127, he submitted that grounds (a), (b), (c), (d), (e), (f) and (g) are incompetent and since none of the grounds can sustain the appeal, it is liable to be dismissed. He urged the Court to so hold that dismiss the appeal.
In opposition to the 1st–9th Respondents’ preliminary objection, the Appellants submitted in their Reply Brief, that the use of Roman numerals in the Appellant’s Brief of Argument to identify the grounds of appeal contained in the Amended Notice of Appeal as (a) – (g) and in tying them to the issues raised in the Appellant’s Brief of Argument has not misled the 1st–9th Respondents in any way as to the nature of the Appellants’ complaints against the judgment of the trial Court and the issues for determination arising from the grounds of appeal. He explained that issue 1 is tied to grounds 1, 2 and 6 which was referred to as (a), (b) and (f), while issue 2 is tied to grounds 3 and 4 which is referred to as (c) and (d). He added that issue 3 is tied to grounds 5 and 6 or (e) and (f) in the Appellants’ Brief of Argument, while the 7th ground which is labelled as (g) is the omnibus ground.
On the argument that the grounds of appeal do not emanate from the judgment of the trial Court, learned Counsel for the Appellants pointed out that the 1st Claimant instituted the suit No. HCT/156/09 against the Appellants and the 10th–11th Respondents on the chieftaincy stool of Olu of Ifo based on the Chiefs Law Cap 20, Laws of Ogun State of Nigeria and Chiefs Law Vol. 1 and Revised Declaration on Ifo Chieftaincy made thereto contemporaneously on the same issue now pending at the Court of Appeal, Ibadan in appeal No. CA/I/118/97. He added that the Chiefs Law Cap 20 and Chiefs Law Vol.1 and Revised Declaration on Ifo Chieftaincy made thereto was amended on the 29th of May, 1991 and was registered on the 1st of July, 1991 which made the 2nd Appellant the consenting authority to the Baale or Monarch of Ifo Chieftaincy including the Olu of Ifo. He referred to pages 52, 53 and 180 of the Record of Appeal.
Learned Counsel submitted that the preliminary objection of the 1st–9th Respondents is misconceived as it has not raised anything fundamental as to affect the competence of the appeal or the Appellants’ Brief of Argument which was properly numbered and paginated. He relied on the case of NIGERIAN TELECOMMUNICATIONS LTD v JATTAU (1996) 1 NWLR (Pt. 425) 392; and the book titled: THE BRIEF SYSTEM IN NIGERIAN COURTS by Honourable Justice Niki Tobi. Centre for Law & Development Series, 1999 at page 50. He urged the Court to dismiss the preliminary objection.
RESOLUTION OF THE PRELIMINARY OBJECTION:
On the difference in the type of numbering of the grounds of appeal made in the Amended Notice of Appeal and in the Appellants’ Brief of Argument, I state right away that Courts of today are more interested in doing substantial justice. They are more interested in deciding the merit or otherwise of the causes or issues brought before them, rather than be beholden to technicalities. This point was poignantly made by the Apex Court in IKECHUKWU v NWOYE & ANOR (2013) LPELR-22018(SC), when Ogunbiyi, JSC held at page 10, paras. A, as follows:
“…I seek to emphasize that the expected result of adjudication on any matter is, whether justice has been done to the case or not. The quest is for justice; hence technicality which breeds injustice should not be allowed to rear its ugly head and thus beclouding the very reason why the system is put in place. The principle of technicality has long been done away with under our judicial system of adjudication and given in to substantial justice as the prevailing order of the day. The reason justifying this endorsement is not far-fetched but well founded; the law is made for man and not the reverse. For further and better emphasis, I again seek to state that the primary purpose of putting the law in place is to ensure that justice is to prevail; any subsequent leaning towards technicality for purpose of circumvention would be self-defeating of the very concept which is set out to achieve.”
See also: PDP v INEC & ORS (2012) LPELR-9724(SC), per Rhodes Vivour, JSC at pages 32–33, paras. F–A; THOMAS v FEDERAL JUDICIAL SERVICE COMMISSION (2016) LPELR-48124(SC), per Okoro, JSC at pages 18–19, paras. A–A.
The issue of difference in the type of numbering of the grounds of appeal is, in my view, merely an objection as to form and not substance. Even though in this preliminary objection the 1st–9th Respondents have made separate arguments as to the substance of the grounds, I hasten to overrule this aspect of their objection which relates to the form in which the grounds of appeal were numbered, before I proceed to consider the other aspect of the objection which relates to the substance of those grounds. This aspect of the objection is therefore overruled, since it relates to mere numbering of the grounds of appeal.
I now turn to the aspect of the preliminary objection that relates to the substance of the grounds of appeal.
As a prelude to determining the competence of those grounds, I will reproduce, for ease of reference, the provisions of Order 7 Rules 2 & 3 of the extant Court of Appeal Rules, 2021, which is the same as Order 7 Rules 2 & 3 of the old Court of Appeal Rules, 2016. Order 7 Rules 2 & 3 provides:
2(1) All appeals shall be by way of a rehearing and shall be brought by notice of (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on such parties.
(2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(4) The notice of appeal shall be signed by the Appellant or his legal representative.
3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.
On the 1st–9th Respondents’ objection to the competence of grounds (a) and (b), I have examined the said grounds in the Amended Notice of Appeal. In ground (a), the Appellants have merely quoted the finding of the trial Court contained in the first paragraph of page 183 of the Record of Appeal, and stated that it has occasioned miscarriage of justice. The said ground (a) stated as follows:
The learned trial judge erred in law when she said:
“Any purported exercise of power of appointment of chiefs (recognized or minor) by the 2nd defendant outside his sphere of authority is null and void as such appointment is contrary to the provisions of Chiefs Law” and thereby occasioned miscarriage of justice.”
Similarly, in ground (b), the Appellants quoted the finding of the trial Court in the second paragraph of the same page 183 of the Record and stated that:
The learned trial judge erred in law when she held that:
“…the 2nd Defendant has no power under the Chiefs Law of Ogun State to create the office or appoint or install a Monarch for Ifo in Ifo Local Government having regard to the provisions of the Chiefs Law Vol. 1 Revised Laws of Ogun State” when the question of the validity of the law is being challenged and subject of litigation in appeal No. CA/I/118/97 thereby occasioned miscarriage of justice.”
Apart from the fact that grounds (a) and (b) as reproduced above contain mere quotations of the findings of the trial Court and did not specify in them the error of law complained of, the particulars of those grounds as contained in the Amended Notice of Appeal contained matters which are extraneous to the judgment of the trial Court. The particulars of those two grounds are to the effect that the 2nd Defendant’s power under the Chiefs Law of Ogun State Cap. 20 Laws of Ogun State of Nigeria and the Revised Declaration on Ifo Chieftaincy made thereto, is subject to litigation in Suit No. M/179/95 which culminated in a pending appeal No. CA/I/118/97 before the Ibadan Division of the Court of Appeal. It is however clear that both Suit No. M/179/95 and the Appeal No. CA/I/118/97 mentioned in that grounds were not made part of the decision/judgment of the lower Court and were therefore not the subject of this appeal.
It is settled law that for grounds of appeal and the particulars thereto to be competent, they must relate to the findings and/or decision appealed against. See: VICTINO FIXED ODDS LTD v OJO & ORS (2010) LPELR-3462(SC), per Fabiyi, JSC at page 9, paras. B–C; ORIANZI v AG RIVERS STATE & ORS (2017) LPELR-41737(SC), per Galinje, JSC at page 12 paras. D–F; and GTB v INNOSON NIGERIA LTD (2017) LPELR-42368(SC), per Eko, JSC at page 12 paras. C–E. Indeed, in OMEGA BANK (NIG) PLC v O.B.C. LTD (2005) LPELR-2636(SC), the Supreme Court, per Tobi, JSC held at pages 32–33, paras. F–A, that:
A ground of appeal should complain of the live issues in the matter which will determine the fortunes of the appeal one way or the other. Where grounds of appeal do not properly relate to or fit into the decision of the Court, they gallivant in the appeal, thus serving no useful purpose.
It must be stated that the purpose of particulars to a ground of appeal is to inform the respondent and the Court of the errors or misdirection complained of. In other words, they are meant to highlight the complaint against the decision or judgment on appeal. Thus, there must be a synergy between a ground of appeal and the particulars of the said ground of appeal and all must relate to the decision or judgment appealed against. See: DIAMOND BANK LTD v PARTNERSHIP INVESTMENT CO. LTD (2009) 18 NWLR (Pt. 1172) 67; OSASONA v AJAYI (2004) 14 NWLR (Pt. 894) 527; MUNGUNO v BLUEWHALES & CO. (2011) 2 NWLR (Pt. 1231) 275; and FEDERAL MEDICAL CENTRE, IDO-EKITI v OLAJIDE (2011) 11 NWLR (Pt.1258) 256. Hence, particulars which speak a different language that is outside the contemplation of the ground of appeal go to no issue. And where all the particulars to a ground of appeal are unrelated to the ground, then the ground of appeal is incompetent and must be struck out. See: ARIBO v CENTRAL BANK OF NIGERIA (2011) 12 NWLR (Pt. 1260) 133; CROSS RIVER BASIN & RURAL DEVELOPMENT AUTHORITY v SULE (2001) 6 NWLR (Pt. 708) 194; OLUFEAGBA v ABDUL-RAHEEM (2009) 18 NWLR (Pt. 1173) 384; and USHIE v EDET & ANOR (2009) LPELR-8146(CA), per Orji-Abadua, JCA at pages 16–18, paras. F-A.
The particulars or errors stated in grounds (a) and (b) of the Appellants’ Amended Notice of Appeal, relate to extraneous Suit No. M/179/95 and pending Appeal No. CA/I/118/97 which have never been part of the decision of the trial Court. In the case of KLM ROYAL DUTCH AIRLINES v ALOMA (2017) LPELR-42588(SC), the Supreme Court, per Kerekere-Ekun held at pages 10–11, paras. D–D, that:
“Even a cursory look at Ground 2 and its particulars would reveal that the appellant is challenging the decision of the trial High Court and not the decision of the Court below. The Court below, having held that the appellant’s brief was incompetent did not consider the merit of the appeal at all. As rightly submitted by learned counsel for the respondent, the grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ratio of the decision.”
Grounds (a) and (b) of the Amended Notice of Appeal whose particulars do not relate to any decision of the trial Court are therefore, incompetent. Accordingly, the said grounds are hereby struck out.
It is trite that issues are distilled from grounds of appeal and an issue distilled from an incompetent ground or a combination of competent and incompetent grounds of appeal is also incompetent. See: NJEMANZE v NJEMANZE (2013) LPELR-19885(SC), where Ogunbiyi, JSC held at page 31 paras. D–D, that “the law is well settled that no competent issue can arise from an incompetent ground of appeal. See also: JEV & ANOR v IYORTYOM & ORS (2014) LPELR-23000(SC), per Okoro, JSC at pages 36–37, paras. F–B; and SET SUCCESS ENTERPRISES & CO. LTD. v IBEJU-LEKKI LOCAL GOVERNMENT COUNCIL & ANOR (2021) LPELR-56608(SC), per Peter-Odili, JSC at pages 41–42, paras. B–C. It is in this light that I hold that issue 1 which is formulated from grounds (a), (b) and (f) (or 1, 2 and 6) of the Amended Notice of Appeal is incompetent. Accordingly, issue 1 is also struck out.
On the objection in relation to ground (c) of the Amended Notice of Appeal, the Appellants have similarly only quoted the finding of the learned trial Judge and stated that he had erred in law and thereby occasioned miscarriage of justice. The said holding of the learned trial Judge was that “the 2nd Defendant lacks the power and competence to create the office of a monarch for Ifo however described especially the Onifo of Ifo land, the creation of the office of Onifo of Ifo land is illegal, null and void and it is hereby set aside. It is also declared that it is unlawful and improper for the 2nd Defendant to install, appoint or give approval to the appointment of the 1st Appellant as Onifo of Ifo land.” The particulars to that ground merely stated that the fact that the case of the Claimants for a declaratory relief was commenced by originating summons and that same was determined on the basis of affidavit evidence and that the trial Judge was erred by not ordering that the originating summons be converted to writ of summons and pleadings exchanged to enable parties call oral evidence to resolve conflicts in affidavits.
I have carefully examined the said ground (c) and its particulars. As with the preceding counts (a) and (b), the particulars of error under this count does not relate to any decision of the trial Court. The Record of this Appeal shows that before the trial Court the Appellants only responded to the originating summons by filing a motion dated 13th October, 2009 challenging its competence which they abandoned and same was struck out by the trial Court. At page 175 of the Record of Appeal, the trial Court specifically held that:
The 1st and 2nd Defendants appears (sic) not to be interested in the application any longer. Hearing Notice was served on their counsel as ordered by the Court. Proof of Service is in the Court’s file, yet the 1st and 2nd Defendants and their counsel are not in Court. Application dated 13th October, 2009 is hereby struck out. Cost in the cause.
It is instructive that the Appellants have not appealed against that order of the trial Court striking out their motion of 13th October, 2009. An unappealed decision or order of Court remains binding upon the parties: FIDELITY BANK v MARCITY CHEMICAL INDUSTRIES LTD & ORS (2022) LPELR-56866(SC), per Nweze, JSC at page 21 paras. A–D; PILLARS (NIG) LTD v DESBORDES & ANOR (2021) LPELR-55200(SC), per Agim, JSC at pages 11–12, paras. F–B; and EZIKE & ANOR v EGBUABA (2019) LPELR-46526(SC), per Okoro, JSC at page 13, paras. C–D.
It is important for me to state that by what is now an established practice, an objection to the competence of a suit commenced by originating summons or originating motion is heard together with the substantive suit. Thus, a defendant or respondent wishing to challenge the competence of an action commenced by an originating summons or originating motion and also defend the action, is expected to file not only his objection challenging the competence of the action, but his counter affidavit defending the action. Where, as in this case, the defendant or respondent files only a preliminary objection challenging the competence of the originating summons but fails to file a counter affidavit to defend the action, he will be regarded as having no defence to the action, where his objection to the competence of the action fails or, as in this case, is struck out.
In the instant case, apart from their said motion dated 13th October, 2009 which was struck out as shown above, the Appellants did not file any counter affidavit to contest the substance of the Originating Summons so as to warrant any consideration by the trial Court of whether to convert the originating summons to a writ of summons and order parties to file pleadings. Thus, there was nothing on the Record of Appeal to show that any objection was made as to the propriety of use of originating summons for commencing the action and therefore there is not any decision by the trial Court thereon which could constitute the error stated in the particulars to the said ground (c). So, as with grounds (a) and (b), ground (c) is also incompetent as the error complained does not relate to any finding or decision of the trial Court. I so hold and accordingly set aside ground (c) of the Appellants’ Amended Notice of Appeal.
Turning to grounds (d) and (e), I am in agreement with the submission of the learned Counsel for the 1st–9th Respondents that the said grounds are based on falsehood that there were conflicting affidavits before the trial Court. The printed Record of Appeal shows that, apart from their motion dated 13th October, 2009 challenging the competence of the originating summons which was struck out by the trial Court, the Appellants did not file any counter affidavit and written address in opposition to the originating summons.
I already held above that the failure of the Appellants to appeal the order striking out their motion of 13th October, 2009 means that the order is still subsisting and binding. Hence, there was nothing by way of a counter affidavit contesting the originating summons before the trial Court.
I observe that the Appellants have tried to argue in their unpaginated Reply Brief (by count, at pages 4–5), that paragraph 1 of their affidavit in support of the struck out motion dated 13th October, 2009 indicate that the affidavit is to serve dual purpose as to support that motion on notice as well as oppose the affidavit of the 1st–9th Claimants in the Originating Summons. This, I must confess, is one of the most preposterous arguments I have heard. With the failure to appeal against the order of the trial Court striking out that motion dated 13th October, 2009 the said motion and everything attached to it have been struck out and could not be used by the Appellants for anything within the proceedings unless same is relisted upon application by the trial Court: OWOH & ORS v ASUK & ANOR (2008) LPELR-2853(SC), per Mohammed, JSC at pages 17–18, paras. F–C. Thus, unless relisted, the trial Court lacks the jurisdiction to make any subsequent order on the said motion or any of the processes attached to it: SPDC & ORS v AGBARA & ORS (2015) LPELR-25987(SC), per Muhammad, JSC at page 65, paras. D–E.
It is therefore preposterous for the Appellants to allege error of law in grounds (d) and (e) based on conflicting affidavits when on the record there were no such conflicting affidavits before the trial Court. The Court and the parties are bound by the record of appeal: SAKAMORI CONSTRUCTION (NIG) LTD v LAGOS STATE WATER CORPORATION (2021) LPELR-56606(SC), per Saulawa, JSC at pages 29–30, paras. B–A; and GARUBA & ORS v OMOKHODION & ORS (2011) LPELR-1309(SC), per Chukwuma-Eneh, JSC at page 36 paras. A – B.
Grounds 4 and 5 or (d) and (e) of the Appellants’ Amended Notice of Appeal which are not hinged on what is contained in the record of appeal are therefore, incompetent. The said grounds 4 and 5 or (d) and (e) are accordingly also struck out.
As stated at page 2 of the Appellants’ Reply Brief, issue 2 is distilled from grounds 3 and 4 or (c) and (d), while issue 3 is tied to grounds 5 and 6 or (e and (f). Now, having found as incompetent and struck out grounds 4 and 5 or (d) and (e), issues 2 and 3 of the Appellants’ Amended Notice of Appeal which were distilled from those incompetent grounds are also incompetent, notwithstanding that they may have been also distilled from other competent grounds. Issues distilled from a combination of competent and incompetent grounds are themselves incompetent and liable to be struck out: See: JEV & ANOR v IYORTYOM & ORS (supra); SET SUCCESS ENTERPRISES & CO. LTD. v IBEJU-LEKKI LOCAL GOVERNMENT COUNCIL & ANOR (supra); and SANMI v STATE (2019) LPELR-47418(SC), per Galinje, JSC at page 7, paras. D–F. Accordingly, issues 2 and 3 of the Further Appellants’ Brief of Argument are hereby struck out.
As with ground (d) and (e) above, ground (f) or 6 is based on the Appellants’ false narrative that there were conflicting affidavits on the Originating Summons before the trial Court. I have already found from the Record of Appeal that the Appellants filed no counter affidavit to the Originating Summons. So, on the record, there was no “hostile and riotous disputes or the likelihood of such disputes arising from the conflicting affidavits and processes of the parties” as stated in ground (f) by the Appellant. And since there were no conflicting affidavits before the trial Court, there could not have been a need for the trial Court to call for oral evidence. Oral evidence is only called to resolve unresolved conflicts in affidavit evidence: FBN PLC v MAY MEDICAL CLINICS & DIAGNOSTIC CENTRE LTD & ANOR (2001) LPELR-1282(SC), per Belgore, JSC (as he then was) at pages 12–13, paras. D–E; CHAIRMAN NATIONAL POPULATION COMMISSION v CHAIRMAN IKERE LOCAL GOVT. & ORS (2001) LPELR-3166(SC), per Onu, JSC at pages 21–22, paras. D–G.
In consequence, ground (f) or 6 is also incompetent and it is accordingly struck out. I have already struck out issue 3 which was, inter alia, formulated from this ground.
From all the foregoing, the fate of ground (g) or 7 which is a complaint that the judgment of the trial Court is against the weight of evidence appears already sealed. In AWUSA v NIGERIAN ARMY (2018) LPELR-44377(SC), the Supreme Court, per Augie, JSC held at page 47, paras. B – E, that:
The position of the law is that when an Appellant alleges that a decision is against the weight of evidence, he means that when evidence he adduced is balanced against that of the Respondent, judgment in the Respondent’s favour is against the weight that should have been given to the totality of the evidence adduced – See Akinlagun V. Oshoboja (2006) 12 NWLR (Pt. 993) 60 at 82 SC. The complaint is only concerned with appraisal and evaluation of all the evidence and not the weight to be attached to any particular piece of evidence – Osolu V. Osolu (2003) 11 NWLR (Pt. 832) 608 SC.
By the above decision, a ground of appeal which posits that the judgment is against the weight of evidence can only be sustained where there is evidence on both sides of the scale. As already found from the record, the Appellants did not file any counter affidavit to the Originating Summons and as such there was no evidence on their side with which they can sustain this ground.
I have already held that their argument that their affidavit in support of their struck-out motion should serve as counter affidavit to the originating summons is preposterous and misconceived.
It is settled that a case where, as in this case, no evidence is led by the defence, that is where the evidence of the Claimant is unchallenged and uncontroverted, the claim is established on a minimal proof, as there is no evidence on the other side of the scale with which the Claimant’s evidence could be weighted. See: SPDC (NIG) LTD v EDAMKUE & ORS (2009) LPELR-3048(SC), per Ogbuagu, JSC at pages 41–42, paras. G–C; and AJERO & ANOR v UGORJI & ORS (1999) LPELR-295(SC), per Onu, JSC at pages 23–24, paras. G–C.
There being no evidence on the side of the Appellants, their omnibus ground that the judgment of the trial Court is against the weight of evidence is bound to fail as there was no evidence on record by way of counter affidavit from the side of the Appellants’ scale against which the Respondent’s affidavit evidence in support of the originating summons can be weighted. Thus, ground (g), even if valid, is not sustainable as the Appellants have led no evidence in the suit before the lower Court upon which the ground can be sustained.
It is clear from this appeal that all the 7 grounds of appeal contained in the Appellants’ Amended Notice of Appeal have been struck out, same having been found to be incompetent and with them, the three issues formulated therefrom by the Appellants. It is settled that a Notice of Appeal with no valid ground of appeal is fundamentally defective and divests the Court of jurisdiction to entertain the appeal, there being no valid originating process. See: ADERIBIGBE & ANOR v ABIDOYE (2009) LPELR-140(SC), per Mohammad, JSC at page 20 paras. D–F; CO-OPERATIVE & COMMERCE BANK PLC & ANOR v EKPERI (2007) LPELR-876(SC), per Onnoghen, JSC (as he then was) at page 17 paras. D–E; and ECOBANK (NIG) LTD v HONEYWELL FOUR MILL PLC (2021) LPELR-56261(CA), per Otisi, JCA at page 20 paras. B–B.
On the whole, the 1st–9th Respondents’ preliminary objection is hereby sustained. With no competent ground to sustain this appeal, this Court is bereft of the jurisdiction to entertain it. Accordingly, the appeal is hereby struck out. Parties are to bear their respective costs.
SAIDU TANKO HUSSAINI, J.C.A.: I have read in draft, the leading judgment prepared and delivered by my brother, Abba Bello Mohammed, JCA with whom I agree in toto, the reasoning and conclusion in upholding the preliminary objection on competence of the Seven (7) Grounds of Appeal in this appeal hence the order striking them out accordingly along with issues supposedly distilled out of those grounds is proper and well taken.
This is a wakeup call for all Learned Counsel engaged in the preparation of Legal documents such as Notices and Grounds of appeal, should be meticulous in the way and manner they handle such duties. The lackadaisical manner by which the learned Appellants’ counsel went about to frame his Notice and Grounds of Appeal, shy of all details required to sustain a valid ground of appeal is indeed worrisome. Needless to say, a ground of appeal must be derived from the ratio decidendi of the judgment appealed against. It is not just enough to lift a portion of the judgment under the pretext that the Court had erred by that finding or holding without accompanying the grounds with valid particulars that can sustain those grounds. It is hoped that the learned Appellants’ counsel and indeed all learned counsel are well guided by this decision in the leading judgment.
Having said that, I too will sustain the Preliminary Objection, taken hence appeal No. CA/I/221/2011 is not sustainable and the same is struck out. There shall be no order as to cost.
MOHAMMED DANJUMA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother ABBA BELLO MOHAMMED, JCA. I agree with the reasoning and conclusion. Having upheld the preliminary objection of the 1st to 9th Respondents, the appeal is hereby struck out. I abide by all the consequential orders in the lead judgment.
Appearances:
A. Ahmed, Esq. For Appellant(s)
P. I. Ogah, Esq. with him, A. A. Aboaba, Esq. O. E. Fatoye, Esq. and A. Adegboyega, Esq. – for 1st – 9th Respondents. For Respondent(s)